[Federal Register: November 28, 2003 (Volume 68, Number 229)]
[Rules and Regulations]
[Page 66697-66699]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28no03-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1032
[Docket No. DA-01-07; AO-313-A44]
Milk in the Central Marketing Area; Order Amending the Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This document adopts as a final rule, without change, an
interim final rule concerning pooling provisions of the Central milk
order. More than the required number of producers in the Central
marketing area have approved the issuance of the final order
amendments.
EFFECTIVE DATE: December 1, 2003.
FOR FURTHER INFORMATION CONTACT: Jack Rower or Carol S. Warlick,
Marketing Specialists, USDA/AMS/Dairy Programs, Order Formulation and
Enforcement Branch, Stop 0231--Room 2971, 1400 Independence Avenue,
SW., Washington, DC 20250-0231, (202) 720-2357, e-mail address: jack.rower@usda.gov, or (202) 720-9363, e-mail address: carol.warlick@usda.gov.
SUPPLEMENTARY INFORMATION: This document adopts as a final rule,
without change, an interim final rule concerning pooling provisions of
the Central milk order. Specifically, this final rule continues to
amend the Pool plant provisions which: Establish lower but year-round
supply plant performance standards; do not consider the volume of milk
shipments to distributing plants regulated by another Federal milk
order as a qualifying shipment on the Central order; exclude from
receipts diverted milk made by a pool plant to another pool plant in
determining pool plant diversion limits; and establish a ``net
shipments'' provision for milk deliveries to distributing plants. For
Producer milk, this final rule continues to adopt amendments which:
Establish higher year-round diversion limits; base diversion limits for
supply plants on deliveries to Central order distributing plants; and
eliminate the ability to simultaneously pool the same milk on the
Central order and a State-operated milk order that has marketwide
pooling.
This administrative rule is governed by the provisions of sections
556 and 557 of Title 5 of the United States Code and, therefore, is
excluded from the requirements of Executive Order 12866.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have a retroactive
effect. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with the rule.
The Agricultural Marketing Agreement Act of 1937, as amended (7
U.S.C. 601-674), provides that administrative proceedings must be
exhausted before parties may file suit in court. Under Section
608c(15)(A) of the Act, any handler subject to an order may request
modification or exemption from such order by filing with the Department
of Agriculture (USDA) a petition stating that the order, any provision
of the order, or any obligation imposed in connection with the order is
not in accordance with the law. A handler is afforded the opportunity
for a hearing on the petition. After a hearing, the Department would
rule on the petition. The Act provides that the District Court of the
United States in any district in which the handler is an inhabitant, or
has its principal place of business, has jurisdiction in equity to
review the Department's ruling on the petition, provided a bill in
equity is filed not later than 20 days after the date of the entry of
the ruling.
Regulatory Flexibility Act and Paperwork Reduction Act
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the Agricultural Marketing Service has considered the economic
impact of this action on small entities and has certified that this
rule will not have a significant economic impact on a substantial
number of small entities. For the purpose of the Regulatory Flexibility
Act, a dairy farm is considered a ``small business'' if it has an
annual gross revenue of less than $750,000, and a dairy products
manufacturer is a ``small business'' if it has fewer than 500
employees.
[[Page 66698]]
For the purposes of determining which dairy farms are ``small
businesses,'' the $750,000 per year criterion was used to establish a
production guideline of 500,000 pounds per month.
Although this guideline does not factor in additional monies that
may be received by dairy producers, it should be an inclusive standard
for most ``small'' dairy farmers. For purposes of determining a
handler's size, if the plant is part of a larger company operating
multiple plants that collectively exceed the 500-employee limit, the
plant will be considered a large business even if the local plant has
fewer than 500 employees.
Of the 10,108 dairy producers (farmers) whose milk was pooled under
the Central order at the time of the hearing (November 2001) 9,695 or
95.9 percent would meet the definition of small businesses. On the
processing side, 10 of the 56 milk plants associated with the Central
order during November 2001 would qualify as ``small businesses,''
constituting about 18 percent of the total.
Based on these criteria, more than 95 percent of the producers
would be considered as small businesses. The adoption of the proposed
pooling standards serves to revise the criteria that determine those
producers, producer milk, and plants that have a reasonable association
with, and are consistently serving the fluid needs of, the Central milk
marketing area and are not associated with other marketwide pools
concerning the same milk. Criteria for pooling are established on the
basis of performance levels that are considered adequate to meet the
Class I fluid needs and, by doing so, determine those that are eligible
to share in the revenue that arises from the classified pricing of
milk. Criteria for pooling are established without regard to the size
of any dairy industry organization or entity. The criteria established
are applied in an identical fashion to both large and small businesses
and do not have any different economic impact on small entities as
opposed to large entities. Therefore, the amendments will not have a
significant economic impact on a substantial number of small entities.
A review of reporting requirements was completed under the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was
determined that these amendments would have no impact on reporting,
recordkeeping, or other compliance requirements because they would
remain identical to the current requirements. No new forms are proposed
and no additional reporting requirements would be necessary.
This action does not require additional information collection that
requires clearance by the Office of Management and Budget beyond
currently approved information collection. The primary sources of data
used to complete the forms are routinely used in most business
transactions. Forms require only a minimal amount of information which
can be supplied without data processing equipment or a trained
statistical staff. Thus, the information collection and reporting
burden is relatively small. Requiring the same reports for all handlers
does not significantly disadvantage any handler that is smaller than
the industry average.
Prior Documents in This Proceeding:
Notice of Hearing: Issued October 17, 2001; published October 23,
2001 (66 FR 53551).
Tentative Final Decision: Issued November 8, 2002; published
November 19, 2002 (67 FR 69910).
Interim Final Rule: Issued February 6, 2003; published February 12,
2003 (68 FR 7070).
Final Decision: Issued August 18, 2003; published August 27, 2003
(68 FR 51640).
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the Central order was first issued and when
it was amended. The previous findings and determinations are hereby
ratified and confirmed, except where they may conflict with those set
forth herein.
The following findings are hereby made with respect to the Central
order:
(A) Findings upon the basis of the hearing record. Pursuant to the
provisions of the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), and the applicable rules of practice and
procedure governing the formulation of marketing agreements and
marketing orders (7 CFR part 900), a public hearing was held upon
certain proposed amendments to the tentative marketing agreement and to
the order regulating the handling of milk in the Central marketing
area.
Upon the basis of the evidence introduced at such hearing and the
record thereof it is found that:
(1) The Central order, as hereby amended, and all of the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) The parity prices of milk, as determined pursuant to section 2
of the Act, are not reasonable in view of the price of feeds, available
supplies of feeds, and other economic conditions which affect market
supply and demand for milk in the marketing area, and the minimum
prices specified in the order, as hereby amended, are such prices as
will reflect the aforesaid factors, insure a sufficient quantity of
pure and wholesome milk, and be in the public interest; and
(3) The Central order, as hereby amended, regulates the handling of
milk in the same manner as, and is applicable only to persons in the
respective classes of industrial and commercial activity specified in,
a marketing agreement upon which a hearing has been held.
(B) Additional Findings. It is necessary in the public interest to
make these amendments to the Central order effective December 1, 2003.
The amendments to these orders are known to handlers. The final
decision containing the proposed amendments to these orders was issued
on August 18, 2003. These proposed amendments are identical to the
amendments in the Interim Final Rule published in the Federal Register
on February 12, 2003 (68 FR 7070), regulating the handling of milk in
the Central marketing area.
The changes that result from these amendments will not require
extensive preparation or substantial alteration in the method of
operation for handlers. In view of the foregoing, it is hereby found
and determined that good cause exists for making these order amendments
effective December 1, 2003. It would be contrary to the public interest
to delay the effective date of these amendments for 30 days after their
publication in the Federal Register. (Sec. 553(d), Administrative
Procedure Act, 5 U.S.C. 551-559.)
(C) Determinations. It is hereby determined that:
(1) The refusal or failure of handlers (excluding cooperative
associations specified in Sec. 8c(9) of the Act) of more than 50
percent of the milk, which is marketed within the specified marketing
area, to sign a proposed marketing agreement, tends to prevent the
effectuation of the declared policy of the Act;
(2) The issuance of this order amending the Central order is the
only practical means pursuant to the declared policy of the Act of
advancing the interests of producers as defined in the order as hereby
amended;
(3) The issuance of the order amending the Central order is favored
by at least two-thirds of the producers who were engaged in the
production of milk for sale in the marketing area.
[[Page 66699]]
List of Subjects in 7 CFR Part 1032
Milk marketing orders.
Order Relative to Handling
0
It is therefore ordered, that on and after the effective date of this
document, the handling of milk in the Central marketing area shall be
in conformity to and in compliance with the terms and conditions of the
order, as amended, and as hereby further amended, as follows:
PART 1032--MILK IN THE CENTRAL MARKETING AREA
0
The interim final rule amending 7 CFR part 1032 which was published at
68 FR 7070 on February 12, 2003, is adopted as a final rule without
change.
Dated: November 19, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-29624 Filed 11-26-03; 8:45 am]
BILLING CODE 3410-02-P